The basics of Business Law. Concepts every business person should be aware of. Every other slide is a personal photo that I added to make this presentation more palatable. ENJOY
Business Law Basics: What Every Business Person Should Know
1. Business Law Basics:
What Every Businessperson
Should Know
By Salene Mazur Kraemer, Esquire, MBA, CTP-D
603 Washington Road, Suite 500
Pittsburgh, PA 15228
Phone: 412.427.7075 Fax:1-888-718-6752
www.mazurkraemer.com
salene@mazurkraemer.com
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2. Overview
• Getting Started
• Corporate Formation &
Formalities
• Hiring Employees or
Contractors
• Regulatory Compliance
• Raising Money
• Intellectual Property
• Corporate Counseling
• Contract Drafting &
Review
• Product Liability,
Warranties, Advertising
• Business Torts
• E-Commerce
• Exit Strategies
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4. A. Getting Started
• 1. Leave Current Employment
• 2. Startup, Acquisition
(stock or assets), Franchise
• 3. Business Plan
• 4. Location Selection
• 5. Hiring Professionals
• 6. Choose Business Entity
• 7. Forming the Board
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6. Leave Current Employment
• Covenant Not to Compete
• Trade Secrets
• Invention Assignment Agreement
• Misappropriation of Company Resources
• Non-Solicitation Agreement
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7. MAZURKRAEMER LAW 7
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9. Choose Business Entity
• Sole Proprietorship ***
• C Corporation
• S Corporation ***
• Partnership
• Limited Partnership (who is the GP and who is
the LP) ***
• Limited Liability Limited Partnership
• Limited Liability Company ***
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11. Considerations
• Number of Owners
• Type of Owners
• Personal Liability Protection
• Tax status
• Governing Agreement
• Flexibility re: management/governance
• Flexibility re: profit/loss allocations, as well as
cash distribution
• Securities concerns- additional investors?
• Liquidation of entity
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15. B. Corporate Formation Documents
• Articles or Certification of Incorporation or Formation or Partnership
• Written Consent of Sole Incorporator
• Unanimous Consent of Board of Directors
• Corporate Minute Book
• Stock Certificates
• Docketing Statement
• Application for EIN
• Name Reservation in State Incorporated and Where Intend to Do Business
• Fictitious Name Filing
• Certificate of Authority to Do Business in Other States
• Publication of Authority to Do Business in State
• Voting Agreements,
• Necessary Tax Forms
• Shareholders Agreement, Partnership Agreement, Operating Agreement
• Buy-Sell Agreement
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17. C. HR Issues-
Hiring Employees & Contractors
• Employment Agreements
• Consulting Agreements
• Covenant Not to Compete
• Policy/Handbook
• Discrimination Prevention
• Pre-employment application/screening
• Wrongful discharge v. employee at will
• Equity compensation
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19. Employee v. Independent Contractor
• TEST IC: 1) control the outcome of a piece of
work and the means and manner of achieving the
outcome; 2) Offer services to public at large, not
just one business
• IMP: employer does not have to pay social
security or Medicare, unemployment insurance
or workers’ comp for employee, no benefits, no
retirement
• Lower paid, lower skilled often considered
employees
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21. Important Legislation
• Civil Rights Act
• OSHA
• National Labor Relations Act
• ADA
• Age Discrimination
• Family Medical Leave Act
• Fair Labor Standards Act
• EEOC
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23. Reduce Litigation Risk
• Pre-employment recruiting materials
• Careful interview and screening process
• Consistent job evaluations during course of
employment
• Have written employment or independent
contractor agreements
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25. D. Regulatory Compliance
• Local, state (foreign or domestic), federal level
• Zoning approval, permits and licenses
• Insurance
• Government
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31. IP Issues Continued
• Trade Secret Proprietary Information Program
– Confidentiality or non-disclosure agreements
– Non-competition and non-solicitation agreements
– Invention Assignment Agreement
• Trademark, Service Marks-brands, logos, packaging or
designs that are used to distinguish its goods and services
• Registered Internet domain name
• Copyright for text, graphic, software, audio or film
materials, such as manuals or promotional or training
materials
• Licensing Agreements
• International?
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33. G. Corporate Counseling
• Board Formation
– Legally required
– Selection, number, frequency of meeting, diversified,
outside v. interested, compensation
– Synergy, credibility
– Fiduciary Duty of Care to corporation and shareholders
(BIOTC)
• Duty of Loyalty (no self-dealing, no usurp corp opportunity)
• Duty of Care (“reasonable man” test)
• Business Judgment Rule (disinterested, informed, shifts burden)
– D&O Insurance
• Indemnity Agreement (officers)
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37. Contract Law Basics
• Basic elements (offer, acceptance, consideration)
• UCC v. Common Law
• Contract theories (breach of contract, unjust
enrichment, promissory estoppel, restitution)
• Oral, written, implied
• Statute of Frauds (goods over $500, real property,
contract longer than 1 years, pre-nup,
assumption of debt)
• Remedies
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41. Material Contract Terms
• Who are the parties?
• Duties and Obligations
• Payment Terms
• Duration
• Termination
• Warranties and Representations
• Indemnification
• Boilerplate provisions
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45. I. Product Liability, Warranties,
Advertising
• Warranties (express (not puffing), implied
warranty of merchantability, implied warranty of
fitness for a particular purposes)
– Limitation of Liability, AS IS clauses
• Products liability for defective products sold in
dangerous or defective condition (strict liability,
chain of distribution, design defect, warnings)
• False or Misleading Advertising
• Successor Liability
• Defenses (comparative fault, assumption of risk)
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49. K. E-Commerce
• Basic terms of use (favorable linking, information
usage, disclaimers, liability limitation, dispute
resolution and forum selection provisions)
• Clickwrap agreements
• Passive or "brochureware" website vs. selling
goods or services online
• Cookies Permission
• Data security
• Illustrations or photos
• Restricted territories
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